Political Justice

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Political Justice

Political justice refers to the use of the judicial process for the purpose of gaining (or upholding or enlarging) or limiting (or destroying) political power or influence. It may accompany or confirm political or military action, or it may be a substitute for such action. Political justice usually involves the courts, which may be invoked either by public officials or, in those societies which permit open competition for political power, by private individuals. The party invoking the judicial arm must present its demands in a form susceptible of legal determination. This party’s allegations in regard to facts must be open to incrimination and proof under the specific legal system involved. These allegations may relate to intrinsically political acts or to common crimes in which the criminal is charged with political motivation, for example, bank robbery to finance revolutionary activity. Those bringing the case may reap propaganda benefits from the political stature of a person implicated in offenses of a nonpolitical and even technical nature, for example, violation of foreign exchange regulations.

The classical political offense is that of attempting to obtain or to damage a position of political power by actions incompatible with the rules of the existing political system. The state may define the offense in such all-embracing terms as those defining the early Roman perduellio–“animated by a spirit hostile to the commonweal” (Ulpian, Digest 48, 4, 11). This offense simply consisted in whatever the tribuni plebis were able to put over on the people as perduellio (Brecht 1938). Contemporary equivalents are various forms of the offense of “endangering the security of the state.” This type of protective grant may, of course, be refined into any number of ad hoc enactments.

The modern concept of uniform citizenship has led toward a more clear-cut definition of civic obligations, although the extension of the individual’s political rights has created many possibilities of contest over the boundary between political freedom and political crime, between permissible dissent and punishable disloyalty. Until the beginning of the twentieth century both legislation and judicial practice in Western society showed a general line of development that increasingly excluded peaceful speech and agitation by individuals or groups from the category of crime against the state or its rulers.

The political and intellectual climate deteriorated in the interwar period. The concept of the independent and unified national state was challenged by technological changes, by the increasing intransigence of domestic political deviations, and by external threats to the autonomy of the nationstate. Furthermore, a number of states were reorganized on totalitarian lines far more restrictive than had been the case with old-fashioned autocracies. Consequently, twentieth-century statutes have tended to narrow the perimeters of permitted political activities, facilitating the prevention or detection by the state apparatus of even the most incipient stages of hostile organization or propaganda. Internal and external dangers have given rise to concepts such as “demoralization” of the army or nation and “danger to the existence or independence” of the state.

Even in fairly open societies, where traditional categories of political offenses provide fewer means for reproving real or fancied dissent, the state may redefine “perjury” or “contempt of the legislature” so that the area of legal control extends over political attitudes or actions. Individual and group competitors in politics may invoke the concept of “defamation of character” to intimidate their opponents or score propaganda advantages. The utilization of such concepts allows the state or the political contestants to compress the most complex processes and correspondingly complex attitudes into stereotypes of black-or-white, yes-or-no alternatives. The contest between alternatives seems to lend itself to court determination and helps to create public images of defense of, or attack upon, traditional values. In the liberal constitutional framework the value of the political trial depends on the psychological and political pressures of the moment. Because of the meaningfulness of the traditional legal institutions and processes, the trial is marked by a creative element of risk and unpredictability, which distinguishes it from an administrative command performance.

Outside the realm of liberal constitutionalism this creative element of uncertainty is reduced, sometimes to the vanishing point. The judiciary is likely not only to be connected with the state authorities of the day by common social premises (as is usual in all societies) but to be directly dependent upon them. The element of uncertainty disappeared altogether in the Stalinist trials of the 1930s and 1940s. They differed not only from liberal usage but from old-style authoritarian trials by integrating allegations and evidence almost completely with changing political needs. They prefabricated the incriminating facts and tried to fit them tightly into the hypothesis of treasonable development, which the defendant, now publicly cooperating with the prosecution, was assigned to represent. The Stalinist trial formula was the extreme and partly self-defeating culmination of political justice.

In political trials, the decision is officially sought in terms of the alleged criminal past behavior of the real or fancied political foe. Yet the judgment frequently rests on a projection of the defendant’s alleged past behavior into the future. Criminal responsibility for past action is transformed into responsibility for hypothetical future happenings. The criminal-conspiracy thesis is manipulated so as to converge with the conspiracy thesis of the historical process.

Political trials of leaders and prominent members of fallen political regimes are a special, though by no means novel, category of political justice (e.g., Charles i, Louis xvi, Robespierre). Frequent changes of political regime have brought an increasing number of trials by fiat of political successors. Beginning with the abortive Riom trials of the leaders of the French Third Republic and reaching a peak in the Nuremberg and Tokyo war crimes trials, judicial arraignments of predecessor regimes have become a regular feature of sudden political change. In the late 1950s and early 1960s such trials took place in Turkey, South Korea, Cuba, and elsewhere. They frequently lump together responsibility for unsuccessful political action with charges of violation of constitutional norms, illegal forms of personal enrichment, and inhuman and brutal acts, termed “crimes against humanity” in the war-crimes language.

The war-crimes trials were an intensive form of predecessor-regime trial, although in their case the successor regime was a composite of foreign military victors. These trials added a new and, judging by the results, problematic dimension to international political justice: the charge of aggressive warfare. This charge raised legal doubts because it was newly created after the commission of the incriminated acts. Moreover, this charge was somewhat tainted by hypocrisy, coming as it did from states that had either tolerated many of the acts of the now fallen culprits or even become their accomplices.

Predecessor-regime trials combine the most problematic features of political trials. They invariably raise the problems of the ad hoc court (judges selected for the specific purpose) and the tu quoque rejoinder (discussed above). They also suffer from procedural shortcomings, restrictions on the freedom of defense, and the lack of any appeals jurisdiction. They are largely directed toward the creation of politically useful imagery. Nevertheless, the trials of predecessor regimes carry their own justification to the extent that the procedural irregularities are outbalanced by the weight of the intrinsic evils that they bring before the bar.

The frequency and severity of political trials depend on many variables of time and place. Few societies have been entirely free of political justice, but the continuum extends from the halcyon days of Victorian England to the delirium of Stalinist Russia. Acute physical threat to the existing order —social, political, colonial, or racial–is most likely to lead the authorities to invoke the judicial apparatus frequently; sometimes their foes are in a position to invoke it too, and occasionally political prosecutions may result from the local interplay between informal police violence and judicial procedure. Where access to courts is fairly free and where witnesses are protected against the cruder forms of intimidation and violence, courts exercise a dual function. They legitimize official reaction against open challenge to constituted authority. Also, however, by submitting official action to some form of court scrutiny, however mild, they act as brakes upon the spread of official violence.

In the absence of acute physical challenge to established authority the likelihood of political prosecution is linked to tactical and propagandistic considerations. It also depends on the strength or weakness of liberal traditions, on ideological judgments, on the prospects of continued erosion of existing authority–as well as on officeholders’ calm or fear in the face of events beyond their control.

Any court performing an act of political justice rejects the contentions of illegality and prejudice and insists on the strict legality of its bases of action. But whether courts apply an existing norm to appropriately ascertained events or apply a spurious norm to “events” perhaps artificially concocted, they are influenced by the actions of political agencies. Similarly, the actions of the courts can support, mitigate, or check those of the political bodies.

The utilization of the apparatus of justice to attain, and at the same time to legitimize, political goals raises questions of appropriateness, necessity, and usefulness. The justification of both goals pursued and methods applied will remain endlessly in dispute, in general and in each individual case. Meanwhile, resort to court proceedings for political ends, especially by the state, will be subject to its own inherent limitations.

It is one paradox of political justice that repression is most effective when least necessary—that is, when the regime attacks small, unimportant, or transitory minorities–and least likely to be effective when most attractive to the regime, that is, in the face of strong, persistent minority opinion and organization. It is another basic paradox that the value of legal procedure in conveying or enhancing the legitimacy of a regime depends largely on the degree to which that procedure respects the limitations on political prosecution, that is, the degree of insistence upon evidence of concrete past action, the untrammeled introduction and challenge of testimony, the freedom of the defense, and the organizational and intellectual distance between the prosecution and the court.

Otto Kirchheimer

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